HomeMy WebLinkAboutC-9395-1 - Encroachment Agreement EPN N2022-0426 for 201 and 203 Agate Avenue8/3/23, 8:55 AM
Batch 16078757 Confirmation
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn: City Clerk's Office
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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202300018532812:02 pm 08/01 /23
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2022-0426)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
17th day of July, 2023, by and between, on the one hand, the City of Newport Beach, a
California municipal corporation and charter city, organized and existing under and by virtue
of its Charter and the Constitution, and the laws of the State of California ("City"), and on the
other hand: Pasqual Ayala, Trustee, under the Pasqual Ayala Revocable Trust dated May 3,
2016 ("2016 TRUST"); and Pasqual Ayala, Trustee, under the Pasqual Ayala Revocable
Trust dated May 29, 2015, as amended by its First Amendment dated May 3, 2016, as
restated by Restated Trust Agreement dated March 20, 2020 ("2015 TRUST").
RECITALS
WHEREAS, this Agreement pertains to the property located at 201 and 203 Agate
Avenue, Newport Beach, California, 92662 and legally described as Lot 22, Block 8 of the
Resubdivision of Section I, Balboa Island, as shown on a map recorded in Book 6, Page 30
of Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 050-031-42 ("Property");
WHEREAS, by Grant Deed recorded in the official records of the Office of the Orange
County Clerk -Recorder on May 8, 2020, as instrument number 2020000208711, the Property
was transferred from PASQUAL AYALA AND KATHLEEN FRITZ to the 2016 TRUST;
WHEREAS, there is no document in existence that evidences the 2016 TRUST;
WHEREAS, the 2015 TRUST appears to be the only existing trust document, based
upon the Memorandum of Trust dated March 20, 2020 ("MEMORANDUM OF TRUST");
WHEREAS, due to ambiguity regarding the identity of the legal owner of the Property
between the trustee of the 2016 TRUST and the trustee of the 2015 TRUST, each enters
into this Agreement, jointly and severally, with the intent that this Agreement shall run with
the land and shall be binding upon and imparts notice upon any and all heirs, successors,
and assigns;
Encroachment Agreement
https://gs.secure-recording.com/Batch/Confirmation/l6078757 1 /4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn: City Clerk's Office
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2022-0426)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
17th day of July, 2023, by and between, on the one hand, the City of Newport Beach, a
California municipal corporation and charter city, organized and existing under and by virtue
of its Charter and the Constitution, and the laws of the State of California ("City"), and on the
other hand: Pasqual Ayala, Trustee, under the Pasqual Ayala Revocable Trust dated May 3,
2016 ("2016 TRUST"); and Pasqual Ayala, Trustee, under the Pasqual Ayala Revocable
Trust dated May 29, 2015, as amended by its First Amendment dated May 3, 2016, as
restated by Restated Trust Agreement dated March 20, 2020 ("2015 TRUST").
RECITALS
WHEREAS, this Agreement pertains to the property located at 201 and 203 Agate
Avenue, Newport Beach, California, 92662 and legally described as Lot 22, Block 8 of the
Resubdivision of Section I, Balboa Island, as shown on a map recorded in Book 6, Page 30
of Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 050-031-42 ("Property");
WHEREAS, by Grant Deed recorded in the official records of the Office of the Orange
County Clerk -Recorder on May 8, 2020, as instrument number 2020000208711, the Property
was transferred from PASQUAL AYALA AND KATHLEEN FRITZ to the 2016 TRUST;
WHEREAS, there is no document in existence that evidences the 2016 TRUST;
WHEREAS, the 2015 TRUST appears to be the only existing trust document, based
upon the Memorandum of Trust dated March 20, 2020 ("MEMORANDUM OF TRUST");
WHEREAS, due to ambiguity regarding the identity of the legal owner of the Property
between the trustee of the 2016 TRUST and the trustee of the 2015 TRUST, each enters
into this Agreement, jointly and severally, with the intent that this Agreement shall run with
the land and shall be binding upon and imparts notice upon any and all heirs, successors,
and assigns;
Encroachment Agreement 1
WHEREAS, the trustee of the 2016 TRUST and the trustee of the 2015 TRUST shall
be collectively and individually referred to herein as "Owner";
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Agate Avenue right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property;
WHEREAS, said Permitted Improvements may interfere in the future with City's ability
to construct, operate, maintain, and replace City and other public facilities and improvements
within Right -of -Way; and
WHEREAS, the parties hereto desire to enter into this Agreement providing for
fulfillment of the conditions required by City to permit Owner to construct and maintain said
Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. A 3-foot high red brick paver fence with red brick paver patio encroaching 1-
foot into the Right -of -Way, as approved by the Public Works Department and
as shown on Exhibit A, attached hereto and incorporated herein by reference.
b. In addition, if any improvements actually built or installed during the time of
construction vary from Permitted Improvements approved herein, such
variations or changes must be approved in advance by the Public Works
Department and shall be shown on the "As Built" plans.
3. City will permit Owner to construct, reconstruct, install, maintain, use, operate, repair
and replace said Permitted Improvements and appurtenances incidental thereto,
within a portion of Right -of -Way, if in substantial conformance with the plans and
specifications on file in City. City will further allow Owner to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
4. Rights granted under this Agreement may be terminated by City with or without cause
and at any time without notice. City shall make good faith efforts to provide sixty (60)
calendar days' notice in advance of termination, specifying in said notice the date of
termination. City shall incur no liability whatsoever in the event of the termination of
this Agreement or subsequent removal of improvements by City.
5. Owner and City further agree as follows:
Encroachment Agreement 2
a. Owner may construct and install Permitted Improvements and appurtenances
incidental thereto in substantial conformance with the plans and specifications
on file in City's Public Works Department, and as described on Exhibit A.
b. Owner shall maintain Permitted Improvements in accordance with generally
prevailing standards of maintenance and pay all costs and expenses incurred
in doing so. However, nothing herein shall be construed to require Owner to
maintain, replace or repair any City -owned pipeline, conduit or cable located in
or under said Permitted Improvements, except as otherwise provided herein.
C. If City or other public facilities or improvements are damaged by the installation
or presence of Permitted Improvements, Owner shall be responsible for the
cost of repairs and restoration of these public facilities or improvements to their
condition at the time of entry into this Agreement.
d. Should City be required to enter onto said Right -of -Way to exercise its primary
rights associated with said Right -of -Way, including but not limited to, the
maintenance, removal, repair, renewal, replacement or enlargement of existing
or future public facilities or improvements, City may remove portions of
Permitted Improvements, as required, and in such event:
(i) City shall notify Owner in advance of its intention to accomplish such
work, provided that an emergency situation does not exist.
(ii) Owner shall be responsible for arranging for any renewal, replacement,
or restoration of Permitted Improvements affected by such work by City.
(iii) City agrees to bear only the cost of any removal of Permitted
Improvements affected by such work by City.
(iv) Owner agrees to pay all costs for the renewal, replacement, or
restoration of Permitted Improvements.
6. In the event either party breaches any material provision of this Agreement, the other
party, at its option may, in addition to the other legal remedies available to it, terminate
this Agreement and, in the event the breaching party is Owner, City may enter upon
Right -of -Way and remove all or part of the improvements installed by Owner.
Termination because of breach shall be upon a minimum of ten (10) calendar days'
notice, with the notice specifying the date of termination.
7. In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorneys' fees.
8. Owner shall defend, indemnify and hold harmless City, its City Council, boards and
commissions, officers and employees from and against any and all loss, damage,
liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys'
fees (when outside attorneys are so utilized), regardless of the merit or outcome of
Encroachment Agreement 3
any such claim or suit arising from or in any manner connected with the design,
construction, maintenance, or continued existence of Permitted Improvements.
9. Owner agrees that this Agreement shall remain in full force and effect from execution
thereof; shall run with the land; shall be binding upon the heirs, successors, and
assigns of Owner's interest in the land, whether fee or otherwise; and shall be
recorded in the Office of the County Recorder of Orange County, California.
10. The laws of the State of California shall govern this Agreement and all matters relating
to it and any action brought relating to this Agreement shall be adjudicated in a court
of competent jurisdiction in the County of Orange, California.
11. The terms of this Agreement shall be construed in accordance with the meaning of
the language used and shall not be construed for or against either party by reason of
the authorship of the Agreement or any other rule of construction which might
otherwise apply.
12. This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions herein.
13. A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or
any other term, covenant or condition contained herein, whether of the same or a
different character.
14. Owner shall, at Owner's own cost and expense, comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted.
15. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
[SIGNATURES ON NEXT PAGE]
Encroachment Agreement 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: //17&2-
-Agr& C.fir
City Attorney
ATTEST:
Date:
By: 016;
Leilani I. Br n Zj
City Clerk
CITY OF NEWPORT BEACH,
a Californi munycipal cor oration
Date:Z 6 / 20 Z
By:
WcK.Leung
nager
[OWNER SIGNATURES ON NEXT PAGE]
Encroachment Agreement 5
OWNER: PASQUAL AYALA, TRUSTEE,
under the PASQUAL AYALA
REVOCABLE TRUST dated May 3, 2016
Date: << 2 `� . ,Ak 23
Bv: --—
Pasqual Ayala, Trustee
OWNER: PASQUAL AYALA, TRUSTEE,
under the PASQUAL AYALA
REVOCABLE TRUST dated May 29,
2015, as amended by its First
Amendment May 3, 2016, as restated by
Restated Trust Agreement dated March
20, 2020
Date: -2-`t '='-L_
By-
Pasqual Ayala, Trustee
Owners must sign in the presence of notary public
[END OF SIGNATURES]
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Encroachment Agreement 6
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County ofss.
On "fug 202 before me,6Notary
Public, p rsonally appeared °ec � b-- _ who proved to
me on the basis of satisfactory evide re to bellle person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
5� °c KELLY BIGELOW
WITNESS ryy hand and official seal. - ��
�: Notary Public - California
a u s
Orange County
r Y *° Commission k 2305214
��LIF00.M' My Comm. Expires Sep 14, 2023
natur (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of Cali .gl�z�rnia
ounty Cof � } ss. �,�'
On wj �20
<�b fore me, eI�yj��✓ �� Notary
Public, personally ap ared[ a �.j`� proved to me on
the basis of satisfactory evidence to be the p rson(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
AWITNEShand and official seal. oF,KELLY BIGELOWNotary Public - CaliforniaOrange CountyCommission k 2305214
ALIFOWMy Comm. Expires Sep 1(seal)
Encroachment Agreement !
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PERMITTED IMPROVEMENTS PLAN
Encroachment Agreement A-1
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